DHAN BAHADUR SHREES THAPA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2713/2018

[2021] HKCFI 2157

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2713 of 2018

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of the documents only;  or
	consideration of the documents and oral submissions by the Applicant in open court;

Leave to apply for Judicial Review refused.

Observations for the Applicant (Order by Deputy High Court Judge To):

Introduction

1.  This is the Applicant’s application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”) dated 8 November 2018 (the “Decision”).

2.  The Applicant is a Napalese national.  He arrived in Hong Kong on 1 March 2013 with permission to stay as a visitor until 6 March 2013.  He overstayed and was arrested by the police on 3 December 2014.  He was referred to the Immigration Department and lodged a non-refoulement claim.  His claim was treated as having been withdrawn for failing to submit his non-refoulement claim form (“NCF”) on 24 February 2015.  However, at his request, his application was re-opened.

3.  In due course, a screening interview was held on 20 July 2017 and his non-refoulement claims were assessed on all four applicable grounds under the Uniform Screening Mechanism (“USM”), namely: Torture Risk[1]; BOR 2 Risk[2]; BOR 3 Risk[3]; and Persecution Risk[4] grounds.  By a Notice of the Decision dated 16 August 2017, the Director rejected his claims.  He appealed to the Board.  His appeal was dismissed by the Board’s Decision dated 8 November 2018.

The Applicants’ case

4.  The following account of the Applicant’s case is mainly based on the information in his non-refoulement claim form (“NCF”) which was prepared by him with assistance of the Duty Lawyer Service. 

5.  The Applicant is a Magar Hindu.  He has been a supporter of the Congress Party since 2000 or 2001.  One day in 2013, four people claiming to be Maoists went to his home and asked him to join them.  When he refused and told them that he supported the Congress Party, they threatened to kill him next time they came if he refused to join them.

6.  The Applicant took a bus to Pokhara and stayed there for about six months working as a labourer to support his living.  One day, he received a call from the Maoists who told him that they knew he was in Pokhara and threatened to kill him if he did not join them.  The Applicant was in fear and went to Kathmandu to stay with his uncle. At his uncle’s advice, he fled to Hong Kong.

7.  At the hearing, contrary to what he had said in his NCF, he told the Board that he did not visit his uncle in Kathmandu and that all along he and his wife were in Pokhara until he left Nepal to come to Hong Kong.  His intention of coming to Hong Kong was to buy mobile phones and accessories to bring back to Pokhara for resale. He only went to Kathmandu to catch a flight to Hong Kong.  His wife moved to Kathmandu after he had left for Hong Kong.

8.  When confronted with the inconsistencies between what he said in his NCF and at the hearing, the Applicant insisted that he had left Pokhara and relocated to Kathmandu before he came to Hong Kong.  It was his wife who found Pokhara dangerous.  He did not share her view and that was why he had intended to return to Pokhara after purchasing goods from Hong Kong.

The Finding of the Board

9.  The Board found the Applicant’s account of events incredible.  He was inconsistent about his relocation to Pokhara and Kathmandu and the purpose of his coming to Hong Kong.  The Board found that the cumulative effect of those inconsistencies is such that the centrepiece of his story cannot stand.  The Board accepted that the Applicant is a Magar Hindu married to another Magar Hindu, that he moved to Pokhara and stayed there for six months working as labourer, that he departed Nepal from Kathmandu and flew to Guangzhou by air, that he took a bus from Guangzhou to Shenzhen and that he took a train from Shenzhen to Hong Kong on 1 March 2013.

10.  The Board found that the level of risk of the Applicant being subject to death or ill-treatment to the requisite level from the Maoist if he is to be refouled to Nepal is low.   This is primarily because the Board did not believe the Applicant’s version of events, particularly that his life was ever threatened by the Maoist.  In the circumstances, the Applicant has failed to prove his feared harm and risk.  However, the Board went further.  Even accepting the Applicant’s evidence and taking it to its highest, the Board found the risk of harm to be low.  This is because none of the incidents relied on by the Applicant had led to any violence.  The absence or low intensity and frequency of past ill-treatment from the Maoists is indicative of a low future risk of harm upon his return to Nepal. 

11.  Based on the Country of Origin Information (“COI”), the Board was satisfied that state protection of a practical standard is available if the Applicant seeks assistance; and that internal relocation is a viable option to avoid the risk.

12.  Hence, the Applicant has failed to discharge the burden of proving his feared harm and risk is real.  There is no factual basis to support his claims for non-refoulement protection on any of the four applicable grounds under the USM.

Grounds for judicial review

13.  The Applicant’s notice of application for leave to apply for judicial review (Form 86) contained a 17-page statement of grounds.  The statement contains a background of the Applicant and a summary of his case; quotes from statutes such as the Hong Kong Bill of Rights Ordinance and the Basic Law; quotes from international conventions; quotes from decided cases; principles of law; the remedies sought and his grounds of application.  His ground of application as stated in page 5 of Form 86 is that the Board was in breach of procedural fairness in the following four respects:

(1)  the Board had unlawfully fettered its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirement;

(2)  the Board acted in a procedurally unfair manner in dealing with the appeal;

(3)  the Board’s decisions to refuse the appeal were unreasonable or irrational in the public law sense or are a result of procedural errors or unfairness; and

(4)  the Board failed to meet the greater care and duty owed to a self-represented claimant.

14.  From page 16 onwards, the Applicant set out more detailed grounds.  He set out 9 grounds for challenging the Board’s Decision (“A1-A9”); 3 grounds on irrationality (“B1-B3”); 4 grounds on procedural impropriety/unfairness (“C1-C4”); and 6 grounds on procedural impropriety/unfairness (“D1-D6”).  There are overlaps among these 22 grounds, but seemingly they are details in support of the four grounds mentioned in page 5.  The presentation was confusing and made a structured response impossible.  The Court dealt with these grounds in the way they are presented.

15.  At the hearing, the Applicant was asked to elaborate on the grounds.  He said that Form 86 was prepared by someone on his behalf and he did not understand the grounds.  Obviously, it was prepared by someone on his behalf without taking proper instruction.

Ground (A1)-(A9)  – Challenging the Board’s Decision

16.  Under Ground (A1), the Applicant accused the Board of having misdirected itself on the law by taking into account that the Applicant had to have experienced torture in the past in order to establish substantial grounds to believe that there was a risk of torture in the future.  This is a distorted reading or construction of paragraph 17(b) of the Decision.  The Board said:

“The absence or low intensity and frequency of past ill-treatment from these people is indicative of a low future risk of harm upon his return to Nepal.”

What the Board said was that from the absence or low intensity and frequency of past ill-treatment from the Maoist, it was reasonable to draw the inference that the risk of future harm would be low.  The Board did not direct itself that the Applicant must have suffered serious ill-treatment as a pre-condition for proving future risk.  It is all a matter of inference to be drawn from all the circumstances, including the intensity and frequency of the ill-treatment. Whether to draw the inference is a finding of fact within the province of the Board as the tribunal of fact to make.  There is no substance in this ground.

17.  Under Grounds (A2), (A3) and (A5), the Applicant complained about inadequate research and inquiry into the COI, failure to have regard to relevant and up-to-date COI research etc and failed to give proper weight on relevant COI.  He accused the Board of cherry-picking on the COI.  The COI relied on by the Director and the Board are all from credible and official sources, including Country Report on Human Rights Practices for 2016: Nepal published by the United States Department of State; The Wold Factbook - Nepal, published by United States Central Intelligence Agency; and news reports from credible sources such as The Himalayan, The Republica and The Business Standard.   Other than a bald assertion of unreliability and hearsay, the Applicant provided no particulars as to what are untrue, not to mention her failure to provide any publication contradicting these COI.  The Applicant accused the Board of not referring to the most up-to-date COI.  But when asked, he could not produce the COI which he said was most up-to-date.  He mentioned “USHR 2010”, “USRF 2010” and The Report on the ICJ Mission to Appeal” in Ground (C2) at page 19 of the Form 86.  When asked, he said he did not know what these are.

18.  Under Ground (A4), the Applicant complained that the Board failed to evaluate and make a finding of fact as to whether there exists in Nepal a consistent pattern of gross, flagrant or mass violations of human rights, as mandated pursuant to Article 3(2) of Convention Against Torture.  As a result, the Decision is unreasonable.  The article does not require the decision maker to make such finding in all cases.  The decision maker is only required to make the finding where applicable.  On the facts of this case, as the Board primarily did not believe the Applicant’s feared harm and risk are real, it was not necessary to make a finding whether there exists in Nepal a consistent pattern of gross, flagrant or mass violations of human rights.

19.  Under Ground (A6), the Applicant complained that the Board took into account and put weight on irrelevant considerations or considerations that were incorrect, inaccurate or not based on fact or facts not reasonably inferred and failed to take into account and put weight on facts and inferences that were favourable to the Applicant.  As a result, the Decision is unreasonable.  The Applicant did not identify what the irrelevant considerations and relevant considerations were.  This is just an un-particularized complaint. 

20.  Under Ground (A7), the Applicant complained that the Board failed to call for psychological and psychiatric evaluations and reports on the Applicant.  There is no evidence that the Applicant made any complaint of psychological or psychiatric ill-treatment.  On the Applicant’s case, there was no such ill-treatment.  This complaint is frivolous.

21.  Under Ground (A8), the Applicant complained that the Board applied the incorrect standard of proof in the Decision.  He did not identify under what circumstances and to which issues or finding were the wrong standard applied. The Court was unable to identify such blatant error.

22.  Under Ground (A9), the Applicant complained that the failures at first instance by the assigned duty lawyer resulted in a lack of and/or insufficient legal representation for the Applicant and he was not afforded a fair procedure.  This complaint is totally un-particularized and lack of specificity.  It can only be ignored as groundless.

Ground (B1) - (B3)  – Irrationality in the Board’s Decision

23.  These grounds are related to allegations that the COI considered by the Board are out dated, incorrect, and irrelevant and the Board failed to take into account most up-to-date and relevant COI.  These grounds have been considered under Grounds (A2), (A3) and (A5) and dismissed.

Ground (C1) - (C4)  – Procedural Impropriety/Unfairness

24.  Grounds (C1) to (C3) are related to allegations that the COI considered by the Board are out dated, incorrect, and irrelevant and the Board failed to take into account most up-to-date and relevant COI.  These grounds have been considered under Grounds (A2), (A3) and (A5) and dismissed.

25.  Under Ground (C4), the Applicant complained that the Board failed to fulfil its positive obligation to obtain the requisite documents which are substantial.  This complaint could not be considered for want of particulars. There is not a clue what those documents the Applicant was referring to and why he could not have produced them.

Ground (D1) - (D6)  – Procedural Impropriety/Unfairness

26.  Under Ground (D1), the Applicant complained that he was not given legal assistance in filing his appeal against the decision of the Director in his Notice.  In Re Zafar Muzzam[5], Re Zunariyah[6], Re Zahid Abbas[7], Re Tariq Farhan[8], and Re Lopchan Subash[9], the Court of Appeal held that neither the high standard of fairness laid down in Sakthevel Prabakar v. Secretary for Security[10] nor the judgment of FB v. Director of Immigration[11] prescribes that a CAT claimant or a claimant of BOR 2 or BOR 3 or persecution risks has an absolute right to free legal representation at all stages of the proceedings.  The real question is whether the Applicant was prejudiced due to lack of legal representation in prosecuting his appeal before the Board.

27.  The Applicant had the benefit of legal representation by the Duty Lawyer Service and interpretation services of a qualified interpreter in preparing his non-refoulement claim form and at the screening interview and in presenting his case to the Director.  All that legal representation could have benefited him are contained in these documents which would be placed before the Board.   The appeal is by way of a rehearing.  Taking a global view of the circumstances, nothing amiss arose from the non-availability of legal representation in prosecuting his appeal before the Board.

28.  Under Ground (D2), the Applicant complained that the Board refused his appeal on 8 November 2018, but it was not until 28 November 2018 that he received the Decision and the secretariat of the Board refused to notify him of the result by phone.  Assuming all these allegations are true, the Court was unable to find how these facts would affect the reasonableness or rationality of the Decision by the Board.

29.  Ground (D3) relates to the COI and has been dealt with under Grounds (A2) and (A3) above.

30.  Grounds (D4) and (D5) are related to lack of a screening interview before the Director made his decision in the Notice in rejecting his claim under BOR 2.  The Applicant complained it was unfair to deprive him of his absolute right to an oral hearing in relation to his BOR 2 claim.  There is no requirement that a separate screening interview and a separate hearing be held in respect of a claim under BOR 2.  In paragraph 3 of the Guideline for completing the NCF, the Applicant was informed that his claims will be considered under all applicable grounds available under the USM, including BOR 2.  That was also explained to him at the screening interview held on 20 July 2017.  In the Notice dated 16 August 2017, the Director also mentioned the same.  There is no basis for the Applicant to claim he had an absolute right to a screening interview and separate hearing in respect of his BOR 2 claim. 

31.  In Ground (D6), the Applicant said there are many more unacceptable and unexplainable grounds.  Again, he did not particularize.  The Court could only ignore this ground as frivolous.

Conclusion

32.  None of the grounds raised in Form 86 has any substance.  As for the overall or general complaint about irrationality and unreasonableness in the Board’s finding, these grounds of complaint are against the finding of fact by the Board.  The function of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[12].  

33.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; and observed a very high standard of fairness.  It was on that basis that the Board found there was no factual basis to support the Applicants’ claims for non-refoulement protection under any of the four applicable grounds.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge her burden of proving her fears and risks. These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness, unreasonableness and irrationality.  There were no such elements in the Decision.  The Decision was utterly without fault. 

34.  For the above reasons, the Applicant’s claims are not reasonably arguable.  There is no realistic prospect of success in the proposed judicial review.  Accordingly, leave to apply for judicial review was refused.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1

[1]  Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

[2]  Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

[3]  Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)

[4]  Risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol

[5]  cacv 2/2018, (unreported) 23 March 2018

[6]  [2018] HKCA 14

[7]  [2018] HKCA 15

[8]  [2018] HKCA 17

[9]  [2018] HKCA 37

[10]  (2004) 7 HKCFAR 187

[11]  HCAL 51 of 2007, (unreported) 5 December 2008

[12]  [2018] HKCA 524 at para 14(1)